Home International Tribunals Archive for category "International Tribunal for the Law of the Sea" (Page 3)

The International Tribunal for the Law of the Sea Gets Busier

Published on August 2, 2011        Author: 

Last summer, I wrote a piece on this blog noting that the International Tribunal for the Law of the Sea (ITLOS), which had been underutilised for some years, was finally getting some substative cases to decide. Although ITLOS had decided a number of cases dealing with provisional release of vessels, and had handled requests for provisional measures in cases where the merits had been submitted to an arbitral tribunal, ITLOS had only decided one case on the merits before 2010. But in a 6 month period before the summer of 2010, 2 cases were submitted to ITLOS: one a maritime delimitation case between Bangladesh and Myanmar  and the other a request for an advisory opinion. Not a lot of activity but nonethess signifcant. Nearly one year on, the Court has had two further cases submitted to it!! Last month, Panama and Guinea Bissau agreed to submit a dispute to ITLOS relating to the detention of a vessel (see press release). In November last year, Saint Vincent and the Grenadines initiated a case against Spain at ITLOS also relating to detention of a vessel. Neither of these cases are provisional release cases (see here). That means four new cases in just over 18 months!

It is worth taking a moment to reflect on this new found confidence in ITLOS. In two of the new cases (the Bangladesh/Myanmar and the Panama/Guinea Bissau cases), the parties have agreed to refer to ITLOS, disputes which ordinarily were within the jurisdiction of arbitral tribunals under the dispute settlement system of the United Nations Convention on the Law of the Sea. In other words, rather than going to an arbitral tribunal with compulsory jurisdiction over the dispute, the parties have instead agreed to go to ITLOS.  This raises questions as to whyStates might choose a standing court over an arbitral tribunal and why the new found confidence in ITLOS (since the ICJ would also have been an option for these States). One might argue that there are a number of advantages of arbitration over judicial proceedings. For example, the parties have more influence over the composition of the tribunal, the tribunal will be much smaller – usually 5 arbitrators – than ITLOS which has 21 judges. Both these points perhaps make ITLOS’ decisions less predictable for parties. But are there advantages to resorting to ITLOS (or other standing judicial bodies) over arbitration? Clearly these four State think so.  I can think of two possible advantages. Decisions of judicial bodies may be regarded as carrying greater (political rather than legal) authority than that of arbitral tribunals. While this may be true of the ICJ, I wonder about ITLOS. Also, developing countries may get financial assistance for using ITLOS. Are there other advantages?  Also, are there advantages of using ITLOS over the ICJ? I would be interested in readers’ comments on these issues.

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Arbitrators Appointed in the Mauritius v UK Case concerning the Chagos Islands

Published on March 26, 2011        Author: 

The International Tribunal for the Law of the Sea (ITLOS) has announced (see press release here)  that its President has appointed three arbitrators to serve as members of the arbitral tribunal which will hear the dispute between Mauritius and the United Kingdom concerning the ‘Marine Protected Area’ around the Chagos Islands. The dispute concerns the creation by the UK of a Maritime Protected Area (MPA) in the Exclusive Economic Zone (EEZ)  around the Chagos Islands Archipelogo. Mauritius, which claims sovereignty over the Chagos Islands,  submitted the dispute to an Annex VII arbitral Tribunal under the UN Convention on the Law of the Sea. It claims that the UK is not competent to create the MPA and that only Mauritius is entitled to create an EEZ around the Chagos Islands. Readers can find analysis of the case in a piece written on this blog  last month by my colleague Irini Papanicolopulu. According to the ITLOS Press Release:

The arbitrators are Ivan Shearer (Australia), James Kateka (Tanzania), and Albert Hoffmann (South Africa). The President appointed Ivan Shearer as the president of the arbitral tribunal. These appointments were made in consultation with the two parties to the dispute.

James Kateka and Albert Hoffan are both judges of ITLOS and Ivan Shearer, who is Emeritus Professor of Law at the University of Sydney has been ad hoc judge at ITLOS in two cases.  Read the rest of this entry…

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The Hamburg Tribunal Heats Up? Is ITLOS now in Business?

Published on September 15, 2010        Author: 

The International Tribunal for the Law of the Sea (ITLOS), which is based in Hamburg, is holding hearings this week in  advisory proceedings before that Tribunal. The case concerns Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area  and the request for the advisory opinion was submitted to the Seabed Disputes Chamber of ITLOS by the International Seabed Authority. The request represents the first advisory proceedings before ITLOS and the first case before the Seabed Disputes Chamber. The oral proceedings are the first before ITLOS in 3 years (the last being in 2007 and the last one before that was in 2004)!

In 1991, Keith Highet who argued many cases before the International Court of Justice wrote a brief comment in the American Journal of International Law (Vol. 85, No. 4 (Oct., 1991), pp. 646-654) noting how the ICJ had become busier than ever in the years immediately following the Court’s judgment in Nicaragua case. The title of this piece is adapted from his piece (The Peace Palace Heats Up: The World Court in Business Again?). The situation that in ITLOS today is no where near the same as that in the ICJ in the early 1990s but I simply wish to note that having been in the doldrums for much of its existence since it was set up in 1996. The Tribunal was created by the UN Convention on the Law of the Sea (UNCLOS) as one (of a number of means) of settling disputes under the UNCLOS. Except in one respect, it has not received much attention from potential users and very few cases have been referred to it. However, at this point in time there are 2 cases on the docket of ITLOS!! Apart from the advisory proceedings there is also a contentious case on its docket. This is the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal submitted to the tribunal in December 2009. Two cases is not much cause for celebration but these are two cases received less than 6 months apart. Is the Tribunal now in business?

Apart from requests for provisional measures and request for prompt release of vessels (the latter is the one respect in which ITLOS has received some attention from users), ITLOS has only previously had one case submitted to it on the merits. This was the Saiga Case (St Vincent and the Grenadines v. Guinea) submitted to ITLOS in 1998. I had just started out as a full time academic at the University of Nottingham and I acted as an adviser and assistant to Richard Plender QC who was counsel to St Vincent. I was involved in drafting some of the submissions to the tribunal and never imagined that ITLOS would not hold oral hearings on the merits of a dispute for another decade!  In that time, there has been no shortage of law of the sea disputes.

The dispute settlement provisions of UNCLOS (Part XV) provides for compulsory adjudication but gives parties a choice of procedures. The default choice (i.e the option to be pursued where no specific choice is made or where parties have chosen different procedures) is international abitration but parties may also use the International Court of Justice or ITLOS. Although more States have chosen ITLOS than any other option, States have refrained from referring  law of the sea disputes to ITLOS. I think that there have been 6 arbitrations initiated under UNCLOS, including an arbitration between Bangladesh and India initiated at the same time as the ITLOS proceedings before Bangladesh and Myanmar. There have also law of the sea cases before the ICJ in the period since ITLOS was created. Failure to refer cases to ITLOS suggests that States perceive disadvantages with that Tribunal when compared with the alternatives. Perhaps its biggest disadvantage is that it is untried and untested. States have some idea what they will get with the ICJ. With arbitration states pick the arbitrators and have some control over the process and this may give some comfort to States. Whether ITLOS continues to generate business might well depend on how it is perceived as performing in the 2 cases currently on its docket.

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